Both the moral and the legal issues in protesting against Isreali tennis player Shahar Peer are somewhat cloudy

I’ve long since given up on trying to get my head around the rights and wrongs of Israel’s actions toward the Palestinian territories. It’s one of those issues that would demand far, far more time and effort on my part to understand than can ever pay off in terms of useful action, and at the end of that process I'd still have a nagging doubt that I was wrong. Thus my default position on Israel and Palestine tends to be “a plague on all your houses”.

So with all due respect to John Minto and Global Peace and Justice, as well as to pro-Israeli folks like this, I discount heavily their fevered assertions that they have “the truth” about the situation. And yes, this refusal to engage probably is a morally compromised position. But it strikes me that the Israeli-Palestine issue is one that could do with far more compromise, and a lot less moral certainty all round.

The issues involved in protesting against individual Israeli sportspeople, as has been taking place in Auckland over the past few days, are even more problematic. Sure, if (a big if) Israel really is guilty of war crimes and creating a quasi-apartheid state (as Global Peace and Justice claim), then that fact demands some form of response from all morally responsible persons. But why a boycott of all sporting contacts?

The rationale for this seems to be that it was used, and seems to have had some effect, in relation to apartheid-era South Africa. But the best rationale for protesting against South African sports teams and individuals was that they were outright manifestations of South Africa’s immoral policies, in that no (or at most a token) black or coloured players were permitted to represent that country. Israeli sports teams just don’t play that same symbolic role, and Arab-Israelis routinely play under the Israeli flag.

So the reason for targeting Shahar Peer and her ilk simply seems to be that as she comes from a “bad” country, she should be stopped from having contact with the international community. Well, I guess that’s OK – but what then of the multiple Russian players in Auckland who come from a state that still is brutally occupying Chechnya, routinely murders dissident journalists, and effectively rigs its elections? And why was China’s Li Na able to play her one match without a murmur – are Tiananmen Square and Tibet now just relics of history?

Doesn’t it then start to look a bit arbitrary to say to Shahar Peer alone: “sorry – your country is just morally unfit to compete against”? And that’s without even getting into the conundrum of whether a form of collective punishment should be visited on all individuals, irrespective of their personal responsibility for the actions of the place they just happen to have been born in.

Fortunately, when these sorts of moral questions all become too hard, I’ve a convenient bolt-hole to escape into: the Law. In particular, the legal niceties of the Police halting Global Peace and Justice’s protests on the grounds that they are “disorderly”. Irrespective of whether these protests are morally commendable or misguided, should the law nevertheless allow them to take place in the way that they did?

Over at No Right Turn, I/S is of the opinion that they should be permitted. He cites the Supreme Court coming down “decisively on the side of free speech” in Brooker v Police - in particular Justice Tipping’s comment that “the purpose of protest is to make someone listen to something they do not want to hear” - to support a claim that the police “can’t just arrest people for saying something [they] don’t like, loudly and repetitively.”

Now, I’ve had cause to write on Brooker v Police in my day job as a legal academic, and I’m afraid I don’t think this is quite right. For one thing, Brooker was decided 3-2, which is hardly a “decisive” decision about anything. For another, the 3-judge majority could not agree on one common test as to when a protest becomes “disorderly”, aside from accepting that the particular protest that Mr Brooker undertook didn’t meet that threshold. And while they did indicate that merely causing “annoyance” should not be enough to make a protest unlawfully “disorderly”, they by no means wrote a blank cheque for protestors to use any means necessary to attract attention to their cause.

Take, for example, Justice Blanchard’s comment that the outcome in Brooker might have been different “had Mr Brooker’s behaviour been repetitive or continued for a rather longer period, or involved the noisy participation of other people or amplification.” Or Justice Tipping’s comment that behaviour that causes “anxiety or disturbance” beyond which a reasonable citizen can be expected to bear will be unlawfully “disorderly”. These sorts of comments make it clear that the mere fact you are engaged in a protest doesn't drape a mantle of impunity over your actions - there still exists a point beyond which further disruption will attract the sanction of the criminal law.

So I don’t know whether the police acted in a legally correct manner. I suspect they are not entirely sure either, but will leave it up to the District Court Judge to determine on the particular facts of the case.

What I do know, however, is that brandishing Brooker as proof that the Police clearly acted in an unlawful manner is, with all due respect, too simplistic. Brooker may have widened the bounds of acceptable protest a bit, bit it didn't throw open the floodgates completely (as others also have had cause to discover).

One last, quite unrelated, point. A large part of the problem with the protest at the tennis venue seems to have been that it intruded noise into the Stadium, which then disturbed the players. This is because in tennis there is a tradition of silencing the crowd before a player serves the ball to allow them to concentrate. But why is it that tennis players (along with golf players) get this kid-glove treatment, while all other sports require players to perform in a cauldron of noise? I mean, try telling the crowd at the World Cup Football final that they must shut up so that the striker and goal keeper can concentrate fully on a penalty kick!

Is the real problem just that competitors in these sports are too soft?